1984-089-Setting Aside The Conditional Use Permit To The Planning Commission To Reconsider The Conditions ThereofRESOLUTION NO. 1984 -89
RESOLUTION SETTING ASIDE THE CONDITIONAL USE PERMIT OF
NATIONAL. CONVENIENCE STORES, INC. AND REMANDING THE
APPLICATION FOR CONDITIONAL USE PERMIT TO THE
PLANNING COMMISSION TO RECONSIDER THE CONDITIONS THEREOF
WHEREAS:
1. The Town of Los Gatos Planning Commission on September 22, 1982
issued a conditional use permit to National Convenience Stores, Inc. ( "NCS ") to
operate a convenience store called the Stop 'N Go Market located at 445 Leigh
Avenue;
Z. NCS filed an appeal of the Planning Commission decision to the Town
Council which held a public hearing of the appeal on November 1, 1982;
3. The Town Council on November 15, 1982 adopted Resolution No.
1982 -209, a copy of which is attached hereto as Exhibit "A," setting forth its
decision to uphold the findings and decision of the Planning Commission.
4. NCS filed a lawsuit in Santa Clara County Superior Court (Action No..
514307) on or about December 15, 1982 challenging the Town's action with respect
to the conditional use permit;
5. The court issued a peremptory writ of mandate on May 3, 1984
commanding the Town of Los Gatos to set aside the conditional use permit granted
to NCS and to reconsider or delete the conditions of the permit in light of the
court's opinion. a copy of which is attached hereto as Exhibit "B."
NOW, THEREFORE, IT IS HEREBY RESOLVED:
T. The conditional use permit granted to NCS by the Planning Commis- _.
sion on September 22, 1982 be set aside; and
Z. The conditional use permit application be remanded to the Planning
Commission to its first available hearing date to reconsider the permit and the
conditions thereof in light of the Court's decision in Santa Clara County
Superior Court Action No. 514301..
PASSED AND ADOPTED at a regular meeting of the Town Council of the
Town of Los Gatos held on the 4 day or June , 1984 by the following vote:
AYES: COUNCILMEMBERS Joanne Benjamin, Eric D. Carlson
Terrence J. Daily, Brent N. Ventura and Mayor
Thomas J. Ferrito
NOES: COUNCILMEMBERS None
ABSTAIN:
ABSENT:
SIGNED:
ATTEST:
CLERK OF TH
COUNCILMEMBERS None
RESC=0N NO. 1982 -209 I IV ED
RESOLUTION DENYING APPEAL FROM PIAIVNING CalIESSION 'Jrt`.! n C I�n?
(445 Lei Avenue - St TOWN OF LOS GATOS
op -N -Go Ma icet) PLANNING DEPARTMENT
WHEREAS: gY
1. Harry F. Williams has appealed a decision of the Planning Cournission, as
follows: certain conditions imposed in the approval of Conditional Use Permit
Application U- 82 -18; and
2. A public hearing was held by the Council or. November 1, 1982;
A. The Council hereby finds as follows:
1.
The
findings
of the Planning
Ccnmission were correct.
2.
The
current
operation of the
market constitutes a severe
and long- standing
nuisance to the neighborhood, particularly between the hours of 9:00 p.m. and 6:00
a.m., as follows:
a. The market has a history of attracting trouble - making teenagers, who,
in connection with their patronizing the market, (1) make loud noises late into the
night; (2) drive recklessly; and (3) litter and vandalize neighboring hones.
b. The aforesaid problems have persisted off and or, for 16 years, with
periodic promises and efforts by the =a Ket to solve the problen being followed by
periods of inaction and correspondingly - increased nuisance.
C. The incidence of nuisance complaints from the Stop -N -Go market is sub-
stantially greater than any of the other three convenience stores in the Town, as
indicated by (1) comparative calls for police service, and (2) the fact that whereas
there has been a strong and repeated neighborhood protest regarding Stop -N -Go, no
neighbor appeared to request that any special conditions be imposed on the use per-
mits granted to the other convenience stores.
d. Many of the evening problems at Stop -N -Go are related to the sale of
alcohol, and in particular to the established pattern of adults buying alcohol for
minors. EXHIBIT "All
r
3. Prohibiting the sale of liquor after 9:00 p.m. and requiring the market
to be closed between 11:00 p.m. and 6:00 a.m. will greatly alleviate the afore-
said nuisance conditions, by removing the attraction for teenagers to congregate
in the area during the specified hours.
4. The amortization periods established by the Planning Commission would con-
stitute a reasonable accommodation between the public gains to be derived from the
speedy removal of the non - conforming use and the private loss - vdiich removal of the
use would entail, for the following reasons:
a. As indicated above, the nuisance caused to the neighborhood in the evening
hours is very severe, and there is therefore a compelling public need to brine it
under control as quickly as possible.
b. The history of the market indicates that n-easures other than requiring
closure during evening hours are unlikely to be effective in mitigating the nuisance.
c. 6dhile the market claims that the limitation on hours will cause it to
becane unprofitable, this was countered by evidence that (1) the market has operated
at a profit in the past while being open only 18 hours /day; and (2) mitigation of
the nuisance may, by reducing neighborhood resentment against the market, increase
patronage during the allowed hours.
d. Since projections of profit or loss are of necessity speculative (in
contrast to the nuisance, which is quite real), the provision for review of the
conditions in one year (or less on application of either the market or an interested
citizen) will allow time to do the following:
(1) Verify whether the hours limitation in fact causes the market to
operate at a loss, or whether the limitation will be overcome by other positive factor;
(2) Consider alternative methods of controlling the nuisance, which may
be explored by such means as using the efforts of professional mediators.
If losses are proven and less damaging alternatives are proposed, consideration
may be given to modifying the hours limitation.
-2-
e \
B. Based on the foregoing findings, the appeal is denied, and Conditional Use
Permit U -82 -18 is approved, as follows:
1. The findings required by the Zoning Ordinance are as follows:
a. The proposed use of the property is desirable to the public convenience
because the market offers a wide variety of general merchandise to a generally
localized neighborhood.
b. The proposed use as limited will not impair the integrity and character
of the zone, since it is on a comae cially -zoned site.
c. The proposed use will not be detrimental to the public health, safety
or general welfare, in that with the conditions imposed, the activity will be in
the nature of normal cannercial use.
d. The proposed use of the property with the cenditions imposed is in
harmony with the various elements or objectives of the General Plan and Zoning
Ordinance.
2. The conditions of operation shall be as follows:
a. The hours of operation shall be limited to between 6:00 a.m. and 11:00 p.m
b. No liquor shall be sold between 9:00 p: m. and 6:00 a.m..
c. Approximately 15 additional juniper or other shrubs shall be planted
along the Hershner Drive frontage of the property, to the satisfaction of the
Superintendent of Parks and Forestry.
d. The store shall contain no more than two game machines.
e. 'ihe approval includes the sale of beer and wine for consumption off
premises.
f. New landscaping shall be provided subject to the approval of the Planning
Director.
3. The amortization or compliance period for the aforesaid conditions shall be
as follows:
a. Conditions c and f, within six months of this approval.
-3-
b.
Conditions a, b,
d and e, within
30 days of this approval.
4. The
approval shall be
reviewed in one
year.
PASSED A IID ADOPTED AT A
OF THE TOWN OF LOS GATOS THIS
1982, by the following votes:
[ -VIDT- 6
REGULAR
NssTIlMG OF
THE TMN COLMCIL
15th
day of
November
,
Ai�0S: COUNCIUE IBERS Ruth Cannon, Thomas J. Ferrito, MarLyn J.
Rasmussen, Peter W. Siemens and Mayor Brent N. Ventura
NOES: COUNCIIIalBERS None
1
0: 121
/s/ Rose E
COUNC TL1`7F24BIl2.S None
COUNCII2'EMBERS None
( seal)
-4-
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II± TIIE SUPERIOI. COUP OF T'_IZ STATE OF CAL1170 .71A r-
TIi AND FOR THE COUIJ7f OF SAN'TA
- -- 000 - --
d �
NATLONAL COL 1 r- NIENCE STOPS , INC
P1aintlff, ) BY
1
vs. ) No. 514301
Tl= TOT, 4 Or LOS GP_TCS, et al. , )
}
Defendants. ) j
M:10R2..DU`i OF DECISIOt1
This is an application for a writ o: mandate
cotr_anding defendants, Tovm of Los Gatos, ToTm Council of
Los Gatos and the Planning Commission o* Los Gatos to set
aside the September 22, 1932 decision o:' the Los Gatos
Pja nin7 Commission which issued r.- lainti a condit4_onal
use ;.•e=mit subject to conditions and to vacate Los Catos
Ordinance 1532. In the alternative, plaintiff requests an
order mandating the town to vacate the conditions o` the
use hermit.
Plaintif:" national Convenience Stores, Inc.,
(T INCS ") has operated a convenience store called the Ste;:'_:
''o .•'ari:et since 1966. The zonin- is C -1, or nei -hoor ood
cc- ,=ercial Zone, and since the store's oncnill�' in 1`:66 it
has operated as an allowed use *shied required no use per=mit.
The store is located across the street from Lei;rh
Ui;h School and has beco,.ne a oorular teeny-le Katherina place
EXHIBIT "B"
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1 Apparently, there is a history o)' conflict between some oe
2 the neighborhood residents and the market, which i.ed the
3 TcTm Council in 1981 to direct the Town attorney to file a
4 nuisance action against the market. In response and
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5 instead, the Town Council on April 20, 1982 adopted
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6 Ordinances 'No. 1531 and No. 1532 which amended the toy -m
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7 ( zoning ordinance. Ordinance No. 1531 operated to (1),
6 define "convenience market ", and (2), add a convenience
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9 TMar1,et as a conditional use in the C -1, C -2 and CH zones.
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10 Ordinance No. 1532 provided that corm.iencin3 in 1982, all
11 uses which become nonconforming by virtue o` a zonin- I
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12 amendment requiring it to obtain a conditional use permit
13 I must apply for the use permit within 60 days after the
14 amendment became elective. i
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15 j On July 12, 1982, :ACS applied for a conditional
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16 ( use permit under protest. On September 12, 1982, the
17 PLanning Cop =ission after an evidentiary hearing ;ranted
16 TICS a use permit subject to certain conditions. The hours
19 0. operation were to be reduced to between 6:00 A.bt. and
20 11:00 P.1'1. with no Liquor sales aster 9:00 P.N., and no more
21 than two game machines. The market was ivetr`=AT r Ito
22 comply with these. conditions. In addition, within six
23 months 1C� das to develop a new landscatin- plan to the
24 satisfaction of the Planning Director and to pLant addition -
25 1 aL shrubs and trees to the satisfaction of the superinten-
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26 ( dent o�= larks & Forestry. rinally, the use permit was to
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1 be reviewed by tae °Lannin�, Department ir. ,ne year.
2 .Three other convenience stores were ;ranted use
3:z." permits with no restrictions.
4 TICS then appealed to the Town Council which, after;
5 an evidentiary hearing, af3irmed the conditional use pernit I
6 and the conditions imposed b3 the :Tanning Comission. At
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7 the I , Council hearing, testimony was received from
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8 neishborhood residents and from police who outlined the
9 various neighborhood problems which the store alle,redly
10 created. The division manager of idC3 also testified
11 introducing evidence compiled iron ;CS records indicating
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12 that the haute ;art -sesL asr., tLe mar} et cocrYs tarr.
13 tutora yToss-_store and compel its_- cLosure.,_,=
14. Plaintiff contends that ordinance No. 1532 is
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15 unccnstitutioYI<il on its face as there was no payment of just;
16 cor-ipensacion or allowance of a reasonable amorti.ati0n
17 period, and thus, results in an unlaw`u1 twin In
18 addition, plaintiff contends that the ordinance is
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19 disc-ciininatory against land uses declared nonconforming in
20 1.198'2 as compared to land uses declared nonconforming prior
21 to 1902.
22 ^laincifr also contends chat ordinance tio. 1531
23 and 1532 were ai^..ed solely at terminatin, plainti =f's use
24 and thus violate the clause o`_ the
25 Constitution.
26
Plaintiff's third contention is that ordinance
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1 Rio. 1532 is unc stitutioraL as applied r plaintiff because!
2 by ;ranting the conditional use pe=it with such onerous
3 conditions which would force the closure of plaintiff's
4 store and allowing an amortization period o- only 30 days
5 in spite of testimony as to plaintiff's investment, an
6 unconstitutional taking occurred. I'
7 finally, plainti`f contends that it is entitled
8 to a writ of mandate under CC? 9 1094.5 (administrative
9 mandamus) because the evidence does not sup =Dort the findings.;
10 *wade by the Town Council, the findings do not support the
ted without and in excess -of its
11 decision, the Council ac
12 jurisdiction, and the ordinance is unconstitutional.
13 ANALYSIS
I
14 The questions presented are properiv be--Fore the
I
15 Court on application for <,Frit o.`. Mandate. Under CCP !094.5
16 I a Tarit may be issued for the purpose of inquiring iatc the
17 validity of any final adMinistrative order or decision made
18 as the result of a proceeding in which by lava a heari-rig is
19 required to be given, evidence is required to be taken and
20 discretion in determination of facts is vested in an
21- inferior tribunal, corporation, board or oficer.
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22 A challenge to the constituticnality Of the act
23 as applied to ar, individual is essentially a review of the
24 validity of the administrative action and as such is
CCP ' 1094.5.
2g properly brou=t1t under the provisions of c
26 Mobile Oil Corn, v. Sun. Ct. (1976) 59 C.A.3d, 293, 307.
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i
cial Ccnstitutionality of Ordinance No. 1532
Under Ordinance No. 1532, § 3.50.050,of the Town
Zoning Ordinance was amended to add the following:
(5) Commencing in 1982, where a zoning amendment
is adopted which causes a use to be nonconsormin
solely'by subjecting it to the requirement of
obtaining a conditional use permit, all uses
affected by the amendment ;oust a ^p1a for a use
permit within 60 days after the amendment becomes
effective. Failure to render such application
shall render the subject use immediately unlawful.
in making its decision for application for a
conditional use permit made hereunder, the
Commission shall, as one o•f the conditions of the
permit, establish an amortization period based on
a reasonable accommodation between the public
gains to be derived from a speedy removal of the
noncon_orting use and the private loss which
removal of the use would entail.
Tile Court's power to declare a zoning ordinance
unconstitutional is subject to
great restraint and should
only be exercised where no reason exists to support the
determination of the legislative body. "Me rule is well
settled that the legislative determination t'_:at the .`.acts
exist which make the law necessary must not be set aside or
disre,arded by courts unless the 1e, ^,islative decision is
clearly and palpably wrong and the error appears beyond
reasonable doubt from -acts or evidence which cannot be cony
troverted and of which the courts may prorerly take notice. "!
Cite• of Los An -eles v. Ca -e (1954) 127 C.A.2d, ! +42, 451.
in view of this policy of restraint, the courts
have found that the right of a city council in its exercise I
of police power to regulate, or in proper cases to prohibit
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the conduct of business is not limited by the fact that
the value of investments made in business prior to the
action may be diminished. Gar;e, supra at 453. Thus an
individual may not complain of incidental injury if police
Dower is exercised for proper purposes of health, safety,
morals or general welfare, and if there is no arbitrary
and unreasonable application. Livingston dock Etc. Co.
v. County of Los Angeles (1954) 43 C.2d, 121.
it is well settled that a city seeking to elimi-
nate nonconforming uses may pursue two constitutionally
ecuivalent alternatives. Either it can eliminate the use
immediately by payment of compensation or can require removal
of the use without compensation following a reasonable
amortization period. United Bus. Com. v. Cite of San Dieeo
(1979) 91 C.A.3d, 156, 1178; 'etroriedia Inc.
San Diego (1980) 26 C.3d, 843, 331,
Los CTatos Ordinance No. 1532, which does operate
to eliminate nonconforming uses provides specifically for
such a reasonable amortization period based upon a balancing!
of the relative interests as required in 'Metromedia, supra.
i
Plaintiff also attacks the mandatory requirement
i
contained in Ordinance No 1532 that nonconforminz uses obtaii n
conditional use penhits. In McCaslin v. City o= 2,onterev
(1958) 163 C.A.2d, 339, plaintiff operated a quarry, a
norconfo=inq use. By comprehensive amendment of the
zoning ordinance, plaintiff was required to obtain a spec
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use -permit, which was r.hen denied
Havin7 already establish'
ed a prior nonconfo=min use, however, plaintiff was found
not to be required to obtain the special use permit. In
i-telton v. City of San Pablo (1967) 252 C.A.2d, 305, the
court upheld a -onin- ordinance requiring plaintiff's
vending establishment to obtain a use pe=.it, distirguishin
McCaslin, supra, on the basis that plaintiff failed to
qualify as a pre - existing nonconforming use. In Castner
v. Citv of Oakland (1982) 129 C.A.3d, 44, the court upheld
an ordinance requiring adult entertainment to obtain a
conditional use pe=it to continue operation beyond the
ordinance's one -year ?race period.
Ordinance No. 1532 by its express terms applies
orn.l o uses _ whhich - become: nonconforminc- coc,nencing in 1932-
.�,,. Me --e'= ore,.. the LL^ndato,;:y use permit requirement Liay not Ue
_he d.-.unccrstitutionai. unless it operates to eliminate such.-
rases iturediately without compensation or to provide facially;
-cur= _rea:sonable amortization period: Los Catos Ordinance No.
1532 on its face provides for the necessary constitutional
safeguards in that it provides for the establishment of a
reasonable amortization period.
Finally, plaintiff asserts that Ordinance .To. 153'.
violates equal protection as, by its terns, the ordinance
applies only to uses rendered nonconfor«.in, after 1932.
In = letronedia Inc. v. City of San Diego (1930)
26 C.3d, 843, 380, the court found that a zoning ordinance
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involving purely economic regulation ;nay be sustained
against an equal protection attack if the classification
bears a rational relationship to a legitimate state purpose.
further, a classification within an ordinance does not
violate equal protection is the distinction rests upon a
rational basis, and it must be prezumed to rest on that.
basis if there is any conceivable state of facts which
would support it. United Bus. Com. v. City of San Diego
(1979) 91 C.A.3d, 156.
:sere the expressed rational basis for the classi-
fication within Ordinance ITo. 1.532 was the procedural--and
bud etar, ?cousiderations inherent in applying the ordinance f
to all nonconformin- uses. A sufficient rational basis
therefore exists to defeat an equal protection challenge.
Ordinance No 1532 is facially constitutional.
Constitutionalit,7 o Ordinance No. 1532 As Arolied
I
A zoning ordinance may not operate to i:u-lediately i
suppress or remove from a particular district an otherwise
lawful business or use already estabLished there. Cit•, of
Los Angeles v. Gage (1954) 127 C.A.2d, 442, 45'
As previously stated, a city seekin- to eliminate
nonconforming uses may pursue two constitutionally equivalent
alternatives: It can eliminate the use icmediateiv by
payment of compensation, or can require removal of the use
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without corpensation ,`following a reasonable amortization i
Period. Metromedia Inc., v. City of San Diego (1980) 26
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C.3d, 043. 2laint rer,s, however, have the burden -o' proving
the invalidity of the amortization period as applied to its
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use. Netromedia, supra at 354,
Ordinance No. 1532 provides for the establishment
of a reasonable amortization period as one o= the conditionst
of a conditional use permit. The period is to be "based on 1
a reasonable accommodation between the public gains Co be
derived from a speedy removal of the nonconforming use and
the private loss which removal of the use would entail."
At the Planninr,� Commission hearing on the NCS
application for a conditional use permit, testimony was
received from neighborhood residents and the police depart- j
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went describing problems with the store. No evidence was I
offered by '.-TCS showin, ^, adverse effects on the store's
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business due to limited hours. Therefore, conditions were
imposed, including limiting the stores' operatin? hours.
On the assumption that the conditions would not fatally
impair nlaintiff's business, the Commission imposed a 30 -dav!
comrliance period upon•su -- estion of the Town Attorney.
On appeal to the Town Councill, plaintiff produced
evidence compiled from NCS business records showin^ Chat ttnel
e "ect of the hours limitation on the store would be to tur-al
a proritable store into a loss store, in effect, the store
Ua n der §5.30.090 of the Los Gatos Zoning Ordinance, upon
hearinn on appeal from decisions by the Planning Commission,
the Council shall consider the record and such additional
evidence as may be offered by anyone.
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would be de aQt o Eusiress ;e •eve t1;e ?c wn Council j
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nevertheless adopted the findings and decision of the
Planning Commission and decided that the degree of nuisance
outweighed whatever private loss NCR might incur.
Plaintiff attacks this decision on two points.
Plaintiff contends first, that the town may no`t declare a
buildin;_a public nuisance and order its abatement without
judicial determination_, and second, that the amortization
period of 30 days is unreasonable.
In metro -media Inc. v. City of San Dieao (1950)
26 C.3d, 848, plaintiff ar -ued that the city's police rower
can never be employed to prohibit completely a business not
found to be a public nuisance. The court held, however, that
the validit,* of an ordinance does not turn on its regulatory;
or prohibitory character, but solely on whether it reason-
ably relates to public safety and welfare. _�?etromedia,
Gatos re_ ?1rding nOLse
supra, at 865. The concerns o:c" Los ,,� .,
;=d,. disturbances caused by the -market provides a reasonable
-ha.s•i- %,1'or the exercise of its police power.
However, plaintiff also argues that the conditions
to be imposed in 30 days constitutes an unreasonable a:orti-
nation period. In City of Santa Barbara v. Modern Neon Si
Co. (1961) 189 C.A.-Id, 1C8, it was held that a municipal
sign ordinance �.orbidding moving signs operated to take the
deendant's nroperty without compensation and without due
process, and was thus unconstitutional as applied. In that
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case, defendant was the Owner of sins constructed pursuant
to city permits issued prior to the enactment of the
ordinance. The city ordered them altered within one year to
eliminate rotation or movenent. Defendant showed that each
sign which had an economic life of at least ten years and
was less than one year old at the time of enactment of the
ordinance would be valueless to defendant if so altered.
The court therefor found that a reasonable anortization
period gust be allowed. The one -year compliance period was
found to be, in effect, the amortization period, and to be
unreasonable under the circumstances,
Similarly in the case at bar, the Town of Los
Gatos has imposed an hours limitation as a condition upon
plaintiff's market, which plaintiff has shocwn casthout
evidence to the contrary will render it valueless.
In
effect, niainti`f has been riven a 30 -day amortization period,
which must be considered unreasonable.
in determining whether an amortization period
providing for the eventual discontinuance of a nonconforming
use is reasonable requires a case by case determination.
ltional :ldvertisins Co. v. County of Monterey onterey (1970)
i:
1 C.3d, 375. The amortization scheme must be r;Teascnabrle in
c?ztEracter and cormensurate with the investment involved -
This determination is not merely a matter of accounting,
and it is not requires that the nonconforming property
concerned have no value at the termination date. The
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determination instead involves the p,6c en_ of wez;hin- the
puhLic gain Co be derived from the speedy removal of the
Sanconforming use against the private loss which removal
would entail. United Bus. Com. v. City of San Die-0 (1979)
91 C.A.3d, 156.
Relevant factors in this determination are:
L) amount of investment or original cost i
2) present actual or depreciated value
3) dates of construction
4) amortization for tax purposes
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5) salvage value
6) remaining useful life
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7) Length of rezain=; terra of lease
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8) har , to public
Metromedia, suvra.. at 881-804.
In general, very short amortization periods of
n f years have been allowed in cases of nonconForii —I
one to wive r
uses aot involving structures. however, the courts crust
be more hesitant to approve such short periods when
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structures are involved due to the ?neater investment lost.
-irst, the benefit to the public from such termination must
exceed loss to owner, and second, the nonconformity must be
allowed for a period of time which minimizes the o�mer's
loss. Of course, as the harm caused by the nonconforming
use or structure increases, the owner may be required to
accept an increasing amount of loss. Schwiesow, A Sughested!
;Means of Determinin- the Prover Amortization Period for ! "On -'
Conforrting Structures, 27 Stan. L. P.ev. 1325. j
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it is obvious that in this case, such a balancin^
approach was not used. Although there may be a considerable)
Factor of public harm involved in this case, the owner's
investment losses must be considered.
Accordingly, a writ of mandate is issued
that defendants seaside the conditional use permi
ted-- to- plaintiff and that the conditions 0Z sucn peral�
4e- reconsidered or deleted in light or this Court's opinion.,
Let the writ issue.
Dated: February 21, 1984
pu1L.
G.
S1�ry
.:
JUDGE.
OF
CHE
SUPERIOR
COuR=